TMI Blog2007 (12) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... ill up 8 vacancies belonging to the non-State Civil Service Officers of Government of Karnataka to the Indian Administrative Service (IAS) of Karnataka cadre on the ground of mala fides, arbitrariness and also on the ground that the Selection Committee without application of mind had awarded marks to the selected candidates in a discriminatory manner. It was also held by the Tribunal that the Selection Committee was not properly constituted as per the provisions of Regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter to be referred to as the Regulations of 1955). Out of the bunch of petitions which were filed before the Karnataka High Court, two petitions were filed by the Union Public Service Commission ( hereinafter to be referred to as the Commission), first is that the Chairman of the Selection Committee, Shri Subir Dutta, Member, U.P.S.C. against whom the allegation of mala fide was leveled and it was upheld by the Tribunal, second one challenging the finding of the Tribunal that the Selection Committee was not properly constituted and the Selection Committee acted arbitrarily and in a discriminatory manner and awarded mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than half the members of the Committee had attended the meeting. Regulation 3(3) which will have relevant bearing reads as under: 3(3) The absence of a member, other than the Chairman or Member of the Commission, shall not invalidate the proceedings of the Committee if more than half the members of the Committee had attended the meetings. Apart from the Member of the Commission, as per the schedule referred to for the State, the following members shall also be the members of the Committee which includes the Chief Secretary to the Government; Additional Chief Secretary to the Government; Principal Secretary to Government, Revenue Department; Senior most Divisional Commissioner and two nominees of the Central Government. This Selection Committee after scrutiny of the records and calling for personal interview will prepare a list and recommend the names of the suitable candidates to the State Government concerned, which shall forward to the Commission for its approval along with the records of all members of the State Civil Service included in the list; the records of all members of the State Civil Service who are proposed to be superseded by the recommendations made in the lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not exceed five times the vacancies proposed to be filled up in that year, therefore, as against eight vacancies 40 candidates were to be short-listed. The Screening Committee short-listed 40 candidates on the basis of the service records out of the 79 candidates whose names were received from different Departments. Besides, the name of one more person was sent to the Selection Committee for selection because of the order passed by the Tribunal. Thus, in total names of 41 persons were sent for consideration against eight vacancies. The Selection Committee after scrutinizing the cases and after interviewing 39 candidates selected eight candidates and two candidates remained absent. Though a petition was filed before the Tribunal by one person who was not selected and stay order was obtained that was challenged before the High Court and the High Court allowed the writ petition and vacated the interim order passed by the Tribunal staying the selection and permitted the selection to be taken to its logical conclusion subject to the condition that the order passed by the Tribunal shall be subject to challenge before this Court. Then one Special Leave Petition was filed before this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta, who was the Chairman of the Selection Committee was appeased with the piece of land in the city of Bangalore i.e. he was allotted a site in Bangalore irrespective of the fact that whether he was eligible or not. It was submitted that during the process of selection and on the basis of interview, a site has been bartered away in favour of Shri Subir Dutta and in that the former Chief Secretary to the Government, Shri B.S.Patil has shown a great interest. Therefore, on account of this favouritism was shown to respondents 5 to 12 before the Tribunal, the applicants before the Tribunal have been denied their legitimate selection and therefore, in sum total, the allegation of mala fide against Shri Subir Dutta is that a site was allotted to him to appease him and secure favourable selection in respect of Respondents 5 to 12. The High Court in order to verify the element of truth sent for the original file relating to the allotment of residential site to Shri Subir Dutta from Bangalore Development Authority wherein it is noted that on 11.4.2003 a note was placed by Shri B.S.Patil, the Chief Secretary, to the Chief Minister making a request that a site be allotted to Shri Subir Dutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary and it was approved by the Chief Minister. Therefore, there appears no direct or indirect connection with the selection of candidates and allotment of residential site in favour of Shri Subir Dutta. As such, the allegations are too far-fetched to render the entire selection invalid on the ground of so called mala fide. This is purely flight of imagination and we strongly reject the allegation of mala fide against Shri Subir Dutta, the Chairman of the Selection Committee. 7. So far as the allegation of mala fide against Shri B.S.Patil is concerned, he was not impleaded as a party. Therefore, the allegation of mala fide could not be entertained by the Tribunal. As such, the allegation of mala fide against Shri B.S.Patil could not be taken into consideration and rightly so, by the High Court as well as by the Tribunal. The allegation of mala fide is very easy to be levelled and it is very difficult to substantiate it, specially in the matter of selection or whoever is involved in the decision making process. People are prone to make such allegation but the Courts owe a duty to scrutinize the allegation meticulously because the person who is making the allegation of animous som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Committee was properly constituted. 9. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory Rules. The Courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the Court of appeal. This discretion has been given to the Selection Committee only and Courts rarely sit in court of appeal to examine the selection of the candidates nor is the business of the Court to examine each candidate and record its opinion. In this connection, learned senior counsel for the appellants has taken us through various following decisions of this Court. (i) AIR 2003 SC 3044 Surya Dev Rai v. Ram Chander Rai Ors. (ii) (1993) 3 SCC 319 P.M.Bayas V. Union of India Ors. (iii) (1985) 4 SCC 417 Ashok Kumar Yadav Ors. V. State of Haryana Ors. Etc. (iv) (1981) 1 SCC 722 Ajay Hasia Ors. V.Khalid Mujib Sehravardi Ors. (v) 2007 (3) SCALE 219 Union Public Service Commission v.S.Thiagarajan Ors. Mr.P.P.Rao, learned senior counsel appearing for the private res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2003 and 28.11.2003 whereby the Selection Committee scrutinized the service records of the individual candidates and interviewed them and the Selection Committee selected those candidates who were found to be having outstanding merit and ability. The Commission has fixed 50 marks for scrutiny of the service records and 50 marks were allotted for interview. It was also decided by the Commission that the candidates would be eligible for selection only if they secure 50% marks in each of the two components i.e. 25 marks in the scrutiny of the service records and 25 marks in the interview. The Commission has further laid down the norms for awarding marks for the scrutiny of service records. 10 marks are awarded to a candidate if on an assessment of service record he was found to be outstanding, 8 marks if the service record was found to be very good and 5 marks if it was good. Candidates who have failed to secure 25 marks in the interview were not held to be qualified. Similarly, the candidates who failed to secure 25 marks on the basis of the service records were also not held to be eligible. However, on facts no person was rejected on the ground that he failed to secure 25 marks eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection Committee, does not survive because the Rules of 2000 repealed the Rules of 1994 and consequential amendment of Rules of 1999 was done away with. Therefore, the reports for the years 1998-99 and 1999-2000 cannot be taken away and these two ACRs cannot be ignored and it has been rightly not ignored by the Selection Committee. More so, if the ACRS are not written or reviewed, then the incumbent is not responsible for it and why should he suffer on account of that. The authority who is under obligation to complete the formalities having failed to do so till the lapse of time why the incumbent should be punished. We fail to appreciate the submissions of the parties before the Tribunal and the view taken by the Tribunal also. It was also pointed that the operation of the Rules of 1999 was stayed by the Tribunal, that may be so. But even thereafter also when the Rules of 2000 have repealed the Rules of 1994, then what turns on the stay order granted by the Tribunal and we cannot hold the incumbent responsible for it and deprive him the due consideration if there is failure on the part of the officers to discharge their duties in writing the ACRs, the incumbent should not be allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitrary. The grievance was that confidential report of Shri S.Daya Shankar for the year 2000-2001 was not available and in case of Sri R. Pramapriya, the confidential report for the year 1997=98 was not available. Yet the reports of Shri S.Daya Shankar was assessed to be outstanding and Shri R.Ramapriya was assessed to be very good without there being any basis for it. This was found by the Tribunal to be patently arbitrary. It is the selection process and what prevailed with the Committee after review of the annual confidential reports of all these officers cannot be dilated in writing. When the Selection Committee sits and considers the candidature of both the officers and in case of both the officers, looking at the 5 years annual confidential reports, one is found to be over all outstanding and the other is found to be over all very good, this marking of the Selection Committee cannot be interfered with in extraordinary jurisdiction or even by the Tribunal. We fail to understand how the Tribunal can sit as an appellate authority to call for the personal records and constitute selection committee to undertake this exercise. This power is not given to the Tribunal and it should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to strike down the same and that is an adequate safeguard against the arbitrary exercise of power. 12. Our attention was invited to a decision of this Court in Union Public Service Commission v. Hiranyalal Dev Ors etc.[(1988) 2 SCC 242] wherein it was held as follows: The mere fact that the Selection Committee erred in taking into account the non-existent adverse remarks does not necessarily mean that the respondent should have been categorized or considered as very good vis-`-vis others who were also in the field of choice. How to categorize in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. This function had to be discharged by the Selection Committee by applying the same norm and tests and the selection was also to be made by the Selection Committee as per the relevant rules. The powers to make selection were vested unto the Selection Committee under the relevant rules and the Tribunal could not have played the role which the Selection Committee had to play by making conjectures and surmises. The proper order for the Tribunal to pass under the circumstances was to direct t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se with regard to the IAS (Recruitment) Rules, 1954 which contemplated that special cases from among persons and special circumstances occurring in the rules could justify the selection of the incumbents or not, in that context, their Lordships held as follows: We are satisfied that there were special circumstances before the State Government to make recruitment under the Regulations. In the face of clear pleadings on the record the Tribunal was not justified in holding that there as no material on the record to show the existence of special circumstances. The Tribunal was wholly unjustified in asking the Central Government to show the existence of special circumstances in terms of Rule 8(2) of the Rules. As interpreted by us the scheme of the Rules and the Regulations clearly show that it is the State Government which has to be satisfied regarding the existence of special circumstances. 16. Our attention was invited to a decision of this Court in Anil Katiyar (Mrs.) v. Union of India Ors. [(1997) 1 SCC 280], it was observed as follows: The question is whether the action of the DPC in grading appellant as very good can be held to be arbitrary. Shri G.L.Sang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were taken; one was found to be outstanding and the second one was found to be very good. This assessment cannot be made subject of Courts or Tribunals scrutiny unless actuated by mala fide. 17. In the case of Shri S.B.Kolhar, Shri R.S.Phonde and Shri Puttegowda, the assessment of the reporting officers and the reviewing officers in the State have been found to be outstanding. But the Selection Committee downgraded the assessment to very good and this has provided grounds to the Tribunal to interfere with the selection of others. The Selection Committee normally abides by the assessment made by the reporting officer and the reviewing authority. But the Selection Committee is not powerless. After reviewing the candidates performance, the Selection Committee can certainly make its own assessment. The guidelines which have been issued by the Commission also enables the Selection Committee to assess the remarks made by the reporting officer or the reviewing officer and after taking into consideration various factors like the meritorious work done or any punishment or adverse remarks made or subsequently expunged on representation can review the assessment about the candida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s decision. Therefore, the view taken by the High Court is correct that it is always within the power of the Selection Committee to record its own assessment about the selection which may be at variance with that of the reporting officer or reviewing officer. 19. It was also pointed out that in the case of Shri N. Sriraman and Shri K.Ramana Naik, the Selection Committee downgraded their reports from outstanding to very good yet they were selected. Similar is the case with Sri K.L.Lokanatha who has not been selected. Like wise the Selection Committee upgraded the assessment for the year 2001-02 from very good to outstanding yet he could not be selected. Therefore, this is also the process of selection and the Selection Committee constituted by the Commission and headed by the Member of the Commission, we have to trust their assessment unless it is actuated with malice or apparent mistake committed by them. It is not in the case of pick and choose, while selection has been made rationally. The selection by expert bodies unless actuated with malice or there is apparent error should not be interfered with. Lastly, the High Court considered the case of the two candidates wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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